Former Phoenixville schools chief seeks dismissal of district lawsuit

WEST CHESTER — The defense team for former Phoenixville Area School District Superintendent David Noyes asked a judge Wednesday to dismiss a lawsuit brought against Noyes by the school district.

Chester County Court Judge Edward Griffith said he would take the motion into consideration and rule on it Thursday morning.

The civil trial against Noyes stems from issues surrounding the proposed site of the Kimberton Elementary School, purchased in February 2005 and eventually abandoned in 2008 allegedly due to concerns surrounding possible site contamination and high costs associated with remediation.

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The school district filed a suit against Noyes on the belief that he did not fulfill his duty as superintendent by properly informing the school board of possible issues with the site near the intersection of Coldstream Road and Route 113. The property in question is a former municipal dump and burn area and located near a Superfund site.

The district is seeking nearly $3.5 million from Noyes. Testimony, which began Tuesday, is expected to continue Thursday if the judge does not dismiss the case,

According to paperwork filed by Ronald L. Williams and Samuel W. Cortes on behalf of the school district, “as a result of Dr. Noyes’ breaches of the (employment) agreement, the school district is entitled to recover $3,489,900.33 in damages, plus interest, because these damages were foreseeable at the time Dr. Noyes breached the agreement.”

Noyes’ defense team, made up of Josh Greenbaum and MaryTeresa Soltis, allege the school board is coming after Noyes because it misjudged public reaction and never read documents that would, in fact, have informed members of the environmental issues with the site.

“The fact that the public opposed the project and that the school district misjudged the public’s reaction as it spent significant time and money pursuing the project is not the fault of Dr. Noyes and it is not due to any breach of his employment agreement,” said paperwork filed by Noyes’ attorneys.

Noyes retired in 2008, shortly before an independent investigation was launched to look into recovering money the school district lost in the Kimberton project.

In her “non-suit movement,” Soltis said the testimony provided by those called by the school district between Tuesday and Wednesday has yet to prove Noyes breached his employee contract and that the information they desired was not hidden.

“The school district can’t hide behind the fact that their own board members didn’t read the documents,” Soltis said.

Mark Casaday, Mary Croke-Parris and Josh Gould, all board members at the time of the purchase of the Kimberton property, testified Wednesday.

Both Casaday and Croke-Parris said they did not read the purchase agreement for the property before the vote to accept it.

Gould was not asked if he read it before the vote, but the defense team said no questions or comments were raised at the meeting before the approval vote was taken.

“Frankly, there wasn’t time to read them,” Croke-Parris said.

Croke-Paris said the agreement was placed before the board just before the vote.

When asked why there were no questions or comments, Croke-Parris intimated it would have been difficult to form a question at that time.

“You don’t know what you don’t know,” Croke-Parris said.

“You would agree that you don’t know what you don’t ask about?” Soltis replied.

An environmental consultant told Noyes that it was his opinion that the district should make the seller clean debris from the site before the sale went through, according to the school district. That was included in a report, according to the defense team.

The district argued that it was Noyes’ duty to point things like that out to the school board.

“At that time, did Dr. Noyes ever express to the board that the cost of remediation could be passed on to the seller?” Williams asked.

“No,” said Croke-Parris, before saying it would have changed her mind about agreeing to purchasing the property if she would have known about that.

During Williams’ questioning, Croke-Parris confirmed that she had asked Noyes several times between the acquisition of the property and the decision to abandon it about “expenses incurred for development” but was told “(then-Business Manager Michele) Diekow was gathering information.”

Diekow testified Tuesday.

The school district also alleges that it was not informed by Noyes or Diekow of a deadline for a sale agreement and its relation to environmental testing at the site.

Josh Greenbaum, the other half of Noyes’ defense, in questioning Casaday, asked if Casaday, the board president at the time, had ever received or read the environmental report on the Kimberton property at the time.

Casaday confirmed that he had not, and that Rob Frees, another board member, said he was reading the summary of it.

Noyes’ defense team provided documentation that the site was accepted as possible to build a school on, while Williams said the school district believed there were too many issues to safely construct there and provided its own evidence.

A stipulation was reached between the school district and Noyes’ side that some of the damages claimed, roughly $700,000 worth, should not be charged to him. Those costs relate to things like environmental testing which would have been a part of the district’s due diligence on the site anyway.

“Previously, my mind-set was this was an accounting of all the costs associated with the project,” Gould explained.

Some of the district’s other costs were returned after the property was taken back by the original seller for $1.65 million paid over a stretch of 95 months, according to court paperwork filed by the district.

According to Williams, in an interview with investigators, Noyes said that it was an “omission” that he didn’t inform the board of possible issues with the site and the possibility that the seller would clear it with their own money.

“He did not share the risk of removing the debris,” Williams said.

Soltis contended that such debris was “non-toxic.”

“There is no question all the expenses the school district incurred they had to incur because of environmental issues,” Williams said.

Soltis said Noyes is essentially a scapegoat.

“To come in years later after public outcry to point the finger of blame is not supported by this court or any other courts in the commonwealth,” Soltis said.